(dissenting).
The decision of the court in the present appeal upholds two convictions for first degree murder on evidence which is legally insufficient to support even a charge of manslaughter.
Defendant Joseph Phams was inside his home lying on a couch when two police officers came to quell a disturbance outside. The police presence led to an altercation between one of the officers and defendant’s brother which commenced while defendant was still inside his house. Defendant emerged from the house and attacked the other officer knocking him to the ground. He continued to attack the officer striking him with a chair and then pinning him to the ground.
While the defendant continued to struggle with the officer, James Taylor, one of the parties to the disturbance which had precipitated the presence of the police, struck that officer with his fist, removed the officer’s service revolver from its holster, and shot and killed both of the officers.
Taylor was charged, tried, and convicted of first degree murder with respect to both killings. While that result is justified on Taylor’s part, there is no way the scenario just described can support defendant’s conviction of first degree murder with respect to the death of either officer. The State’s case is so legally insubstantial it falls of its own weight.
With respect to the death of officer Rice (the policeman with whom defendant was struggling) the State seeks to sustain the conviction on alternative theories of felony murder and willful, premeditated murder. The evidence is insufficient to sustain that conviction under either theory. The underlying felony relied on by the State to support a felony murder conviction is willful injury as defined in Iowa Code section 708.4 (1981).
A majority of jurisdictions have refused to construe felony murder statutes so as to permit the type of bootstrapping which flows from predicating felony murder convictions on felonious assaults. We recently took a contrary position, however, in State v. Beeman, 315 N.W.2d 770, 776-77 (Iowa 1982) where we upheld a felony murder instruction based on willful injury. Although Beeman now permits felony murder convictions to be based on willful injury the record does not permit this result in the present case.
The State’s theory of its felony murder charge is legally invalid. It bases that charge on the proposition that Taylor was aiding and abetting defendant in perpetrating a willful injury offense upon officer Rice which resulted in officer Rice’s murder.
The doctrine of felony murder in its abstract form relates to the criminal responsibility of a single defendant for his own actions. The criminal liability of one party for the act of another in felony murder prosecutions is not based on principles of felony murder but rather upon the law of *800joint responsibility for criminal acts. The issue in the present case is posed as follows in W. LaFave & A. Scott, Jr., Criminal Law section 71, at 553 (1972):
Many of the felony-murder cases involve co-felons only one of whom accidentally or intentionally fires the fatal shot. That person is of course liable for intent-to-kill murder if the shot is fired with intent to kill or of felony murder if it is fired accidentally in the commission of the felony and death is foreseeable. Are his co-felons also liable? This is not so much a matter of felony murder as a matter of parties to crime....
It can be argued that the correct legal theory of “parties to crime” to be applied in felony murder situations is not aiding and abetting. Some commentators believe that aiding and abetting only creates criminal liability on the part of the aider and abettor for the same crime that the principal commits. Guilt of the principal is attributed to the aider and abettor. J. Yeager & R. Carlson, Criminal Law and Procedure § 62 (1979) (hereinafter Yeager & Carlson). Those commentators believe aiding and abetting does not make either the principal or the aider and abettor liable for a different crime committed by the other. They assert that the theory of vicarious liability which is involved in multiple party felony murders is not aiding and abetting but rather joint criminal conduct as defined in Iowa Code section 703.2 (1981). Id. With respect to joint criminal conduct Yeager & Carlson state:
[Section] 703.2 will sometimes impose vicarious liability on one for an offense which he does not intend to commit and which he may not have actually forseen. The conditions are that he must be acting in concert with another....
Id. at § 63. “Concerted action” is defined in Black’s Law Dictionary 262 (5th ed. 1979) as:
Action which has been planned, arranged, adjusted, agreed on and settled between parties acting together pursuant to some design or scheme.
We have not recognized the distinction which Yeager & Carlson draw between conduct falling under section 703.1 and section 703.2, respectively, in felony murder cases decided prior to their enactment. In State v. Conner, 241 N.W.2d 447, 462-63 (Iowa 1976) we used an aiding and abetting analysis in upholding a conviction based on felony murder. It is significant, however, that the joint criminal acts involved in the underlying felony in Conner would have satisfied the elements of concerted action which Yeager & Carlson now attribute to section 703.2. Moreover, the theory of the State in Conner was that the defendant was an aider and abettor of the actual killer in the perpetration of a robbery. In the present case the State’s theory is that Taylor was the aider and abettor and defendant was the principal in the underlying felony. Vicarious liability in aiding and abetting cases flows from and not toward the principal.
In any event, conduct creating a vicarious liability under either section 703.1 or section 703.2 must be established vis-a-vis the acts of the party sought to be charged. As we stated in State v. Lott, 255 N.W.2d 105, 107 (Iowa 1977):
One cannot be convicted of a crime upon a theory of aiding and abetting unless there is substantial evidence to show he asserted to or lent countenance and approval to the criminal act [of the other] either by active participation in it or by some manner encouraging it prior to or at the time of its commission.
Under the State’s felony, murder claim this standard requires “substantial evidence” that defendant was knowingly acting in concert with Taylor with respect to a felo-neous assault upon officer Rice; that he lent countenance and approval to Taylor’s acts.
No reasonable inference may be drawn from the present facts which would aid the State in establishing this proposition. Defendant was fully occupied in a violent struggle with officer Rice prior to Taylor’s entry into the fray. There is absolutely no evidence that he was aware of Taylor’s *801intent to become involved prior to the latter’s hasty attack upon the officers. By this time defendant was in no position to do anything about it. Neither continued struggle on defendant’s part nor his getting out of the way when commanded to do so are sufficient to establish that he was lending countenance to Taylor’s actions. Statements made after the crime that he was glad that the officers were dead do not show countenance “prior to or at the time” of Taylor’s actions. The evidence does not even satisfy a preponderance of evidence standard of proof on this essential element of the crime — the State’s burden is proof beyond a reasonable doubt.
The lack of proof which exists with respect to defendant’s lending countenance to Taylor’s acts in the underlying felony of willful injury carries over to the State’s alternative theory that he is guilty of first degree murder because he aided and abetted Taylor in committing murder. The majority spends much time in its opinion discussing the intent element of the crime. I disagree with the conclusion that the evidence supports a finding that defendant intended to kill either officer or was aware of Taylor’s intent to do so in time to have done anything about it. A more obvious defect in the State’s case, however, is that regardless of defendant’s intent there is no evidence that he was acting in concert with or in aid of Taylor with respect to either killing.
Because the State failed to prove defendant was acting in concert with Taylor or gave countenance to his acts prior to or at the time of their commission he cannot be convicted of any crime with respect to officer Hoing’s death. With respect to officer Rice, defendant committed a crime but there is no proof it caused his death. Defendant’s conviction should be reversed as to both murders, the Hoing information should be dismissed and retrial on the Rice information should be limited to those included offenses below manslaughter.